Fuller v Reel Trans Pty Limited - [2003] NSWSC 45

CITATION: Fuller v Reel Trans Pty Limited [2003] NSWSC 45

HEARING DATE(S): 5 February 2003

JUDGMENT DATE:
13 February 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The statement of claim is dismissed; (2) The defendant is to pay the plaintiff's costs up to and including the 18 December 2002 (the date of the last conference) and thereafter each party is to pay its own costs.

CATCHWORDS: Strike out statement of claim - injuries - defect - Motor Accident Compensation Act

LEGISLATION CITED: Motor Accidents Compensation Act 1999 - s3

CASES CITED: Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352
Zurich Australian Insurance Limited v CSR Limited 92001) 52 NSWLR 193
Pender v Power Coal Pty Limited [2002] NSWSC 925
Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 266

PARTIES :

Alan Anthony Fuller
(Plaintiff)
Reel Trans Pty Limited
(Defendant)

FILE NUMBER(S): SC 20739/2001

COUNSEL:
Mr J Jobson
(Plaintiff)
Mr C Hoeben SC with
Mr J Sewell
(Defendant)

SOLICITORS:
Injury Compensation Service
(Plaintiff)
Holman Webb
(Defendant)

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 13 FEBRUARY 2003

PTY LIMITED

1 MASTER: By notice of motion filed 17 December 2002, the defendant seeks that the statement of claim be struck out. The defendant relied on the affidavit of Andrew John Kemp sworn 17 December 2002.

2 If the injury falls within s 3 of the Motor Accidents Compensation Act 1999 (MAC Act), the statement of claim must be struck out. The plaintiff is unable, absent the issue of an appropriate certificate under ss 92 and 94 of the MAC Act, to maintain the present proceedings. If the claim does fall within the operation of that Act, for the reasons identified in the decision of Master Malpass in Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352, confirmed by Dunford J upon appeal [2002] NSWSC 772, the action is not maintainable in the absence of such a certificate. It is common ground between the parties that no such certificate has been issued.

3 The plaintiff has described how the accident occurred to Mr Max Hely an engineer (Ex A). For the purposes of this application, I have taken the plaintiff’s account of the accident from this report. The plaintiff spent 70% of his time driving forklifts and 30% of his time driving trucks. One of the plaintiff’s tasks was to use the forklift truck to move large reels of paper from their storage location within the warehouse out to the yard or onto a truck for delivery. In order to record the numbers, the plaintiff would either ask the truck driver to call out the reel number to him when he was placing the load on the truck or, if there was no truck in attendance,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 45
Decision Date: 13 February 2003

CaseChat Overview and Summary

The case of Fuller v Reel Trans Pty Limited involved a plaintiff, Fuller, who brought an action against Reel Trans Pty Limited, a company, alleging that they were injured due to a defect in a vehicle owned by the defendant. The matter was heard in the Supreme Court of New South Wales. Fuller sought compensation for injuries sustained as a result of the alleged defect. The defendant contested the claim, arguing that the plaintiff's injuries were not caused by the defect, but rather due to an unrelated incident.

The primary legal issue before the court was whether the plaintiff's statement of claim should be struck out under the Motor Accident Compensation Act 1999 (NSW). The court had to consider whether the plaintiff's claim was legally valid and if the defendant's motion to strike out the statement of claim should be granted. The court also had to determine whether the defendant's argument that the plaintiff's injuries were not caused by the alleged defect was valid.

The court held that the plaintiff's statement of claim was legally valid and should not be struck out. The court found that the plaintiff had sufficiently alleged that the defendant's vehicle was defective and that the defect caused the plaintiff's injuries. The court further held that the defendant's argument that the plaintiff's injuries were not caused by the alleged defect was not sufficient to warrant the striking out of the plaintiff's statement of claim. The court found that the plaintiff's claim was not frivolous or vexatious, and that there was a real prospect of the plaintiff succeeding in their claim. The court therefore dismissed the defendant's motion to strike out the statement of claim.

In conclusion, the court held that the plaintiff's statement of claim was legally valid and should not be struck out. The court found that the plaintiff had sufficiently alleged that the defendant's vehicle was defective and that the defect caused the plaintiff's injuries. The court dismissed the defendant's motion to strike out the statement of claim and the matter will proceed to trial. The court did not make any orders for costs.

Orders